City Nat. Bank of Duncan v. Soderberg

BUSBY, J. This action involves the title to the west 18 inches of lot 31, block 141, in the city of Duncan, Stephens county, Okla. Prior to May 22, 1902, W. E. Scott was the owner of lot 30 in block 141, and Wm. A. Williams was the owner of lot 31 in block 141. Lot 31 was immediately east of lot 30. On May 22, 1902, Williams executed a certain warranty deed to W. E. Scott conveying 18 inches off of the west side of lot 31, the material portion of which provides: “* * * Have bargained, sold, and conveyed and by these presents do bargain, sell and convey unto the said W. E. Scott, the west one-half of said stone wall near the west line of said lot No. 31 of block No. 141 of said town of Duncan, I. T., together with 18 inches off of the west side of' said lot No. 31 of block 141, which is supposed, to be the width from the center of said wall mentioned to the west line of said lot No. 31 of block No; 141 of Duncan, I. T.” The above deed was not recorded until May 11, 1905. On February 28, 1921, Scott executed and delivered to W. T. Foreman a warranty deed, the description of the property conveyed being as follows: “Lot thirty (30) and the west eighteen (18) inches of lot 31 in block 141, in the town of Duncan, Okla., said west eighteen (18) inches of lot 31, block 141, was conveyed to W. E. Scott by W. A. Williams, by warranty deed dated May 22, 1920 (1902).” On April 15, 1921, Foreman executed a warranty deed to J. J. McAdams, the description of the property conveyed being as follows; “Lot thirty (30) and the west eighteen (18) inches of lot thirty-one (31) in block one hundred and forty-one (141) in the town of Duncan, Okla. Said west eighteen (18) inches of lot thirty-one (31) block 141 was conveyed to W. E. Scott by W. A. Williams, by warranty deed dated May 22, 1902, according to the official plan and survey of the town of Duncan, Oklahoma.” On March 22, 1923, McAdams executed a ' warranty deed to plaintiff, City National Bank of Duncan, the description of the property conveyed being as follows: “All of lot thirty (30) and the west eighteen inches of lot thirty-one (31) in block one hundred and forty-one (141).” On August 25, 1903, W. A. Williams executed and delivered to Ira Loyd a warranty deed to lot 31. The said deed contained the following exception: “* * * except an interest in the wall on the east side of said lot heretofore conveyed to J. T. Doak and an interest in the wall *370 at the west side of said lot heretofore conveyed to W. E. Scott.* * *” This deed was recorded May 14, 1906. On October 6, 1911, Ira Loyd executed and delivered to Mamie E. Loyd, his wife, a warranty deed to lot 31. Mamie E. Loyd is the same person as Mamie E. Soderberg, defendant in this action. It is noted that the deed from Williams to Scott was not recorded on the date of the execution of the deed from Williams to Loyd. It is contended, however, that the exception mentioned in Loyd’s deed was sufficient to put him on inquiry which would have lecl to the discovery of the rights of Scott in the property. Prior to the execution of the deed from Williams to Scott, there had been a building constructed on lot 31. The west wall of the building did not extend to the west line of lot 31. The testimony of Scott was to the effect that he intended to purchase a half interest in the property wall, and since there was some space between the east line of lot 30 and the wall it was necessary to purchase 18 inches in order to include half of the wall. In other words, the center of the wall Is . located at a point exactly 18 inches east of the dividing line between lots 30 and 31. This is also substantiated by the testimony of W. E. Scott when he stated that his lot 30 was 26% feet wide, having purchased this 18 'inches. When this sale of the “west one-half of said stone wall near the west line of said lot No. 31 of block No. 141 of said town of Duncan, I. T., together with eighteen inches off the west side of said lot No. 31 of block 141” was consummated, the intention of W. A. Williams was to make Scott the owner of the west one-half of said wail, that portion of said 18-inch strip upon which the said wall stood, and the remaining few inches between that wall and the dividing line between the lots. The deed from Williams to Scott was not recorded until May 11, 1905, and the deed from Williams to Ira Loyd was not recorded until May 14, 1906. Mamie E. Loyd by her deed took the same title that her grantor, Ira Loyd, had, which was clear of defect so far as the record chain of title at that time was concerned. On May 22, 1902, W. E. Scott received his deed and immediately went into possession of the 18-inch strip here involved. For 19 years W. E. Scott thought he owned not only lot 30, but also this 18-inch strip in dispute. He testified positively that he remained in possession and control of the 18-inch strip up until he sold it to W. T. Foreman. That evidence is not disputed. W. T. Foreman thought he owned not only lot 30, but also this 18 inch strip for about two months. McAdams thought he owned not only lot 30, but also this 18-inch strip for about 12 years. The City National Bank thought it owned not only this lot 30, but also this 18-inch strip for about 11 years. All these transfers were made by warranty deed and in each deed appeared the words “* * * and the west 18 inches of lot 31,” etc. Under color of title, then, each of the plaintiff’s predecessors in interest have exercised open, notorious, continuous exclusive, hostile, and adverse possession over this 18-inch strip for the past 31 years. Plaintiffs herein contend that they and their preceding occupants have been in possession since 1902 of the 18-inch strip off of lot 31, and have, therefore, acquired title by prescription. We believe this contention is well taken. While the plaintiff in error itself has not been in possession of said 18-inch strip for the required prescription period, there is such privity of contract shown to exist, to wit, warranty deed from Williams to Scott, warranty deed from Scott to Foreman, warranty deed from Foreman to McAdams, and from McAdams to the bank, plaintiff in error, each deed purporting to convey lot 30 and this 18-inch strip, and under which in each instance the grantees assumed possession, control, and occupancy of the 18-inch strip, so as to permit the latter to tack its possession to that of its predecessors, and establish an occupancy extending back to 1902. In G. J. vol. 2, page 82, it is said: “* * * It, is a rule of almost universal application that, if there is privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each, other to make up the time of adverse holding prescribed by the statdte as against such title.” Under this simple statement of the law, (he above authority cites literally hundreds of cases from practically every state in the Union. Plaintiff in error is now and has been for a number of years past in possession of and occupying a bank building located upon lot 30, which building extends upon and occupies the 18-inch strip here in dispute and ties into the wall here involved, which wall has long since been raised to a two-story wall. Defendant in error certainly must be *371 charged with knowledge' of the size of her lot which she occupied so long, and, if the same was not the size she thought it ought to he, it was her duty to find out the reason why. It is fundamental law that the possession of real property carries with it the presumption of ownership, and it is the duty of those purchasing such property from others than those in possession to ascertain the extent of their claims, and the open, actual possession of such property gives notice to the world of such interest as the purchaser actually has therein. Shaffer v. Turner, 43 Okla. 744, 144 P. 366; Adams v. White, 40 Okla. 535, 139 P. 514; Hass v. Gregg, 52 Okla. 51, 152 P. 1126; Wilkinson v. Stone, 82 Okla. 296, 200 P. 196; McCormick v. Stonebraker, 133 Okla. 34, 270 P. 1098. In the case of Tittle v. Robberson, 143 Okla. 97, 2S7 P. 1011, it is said: “It has been decided, in a long line of eases, that one who proceeds with knowledge of such facts as will put a prudent man upon inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of rights claimed adversely to his vendor, is guilty of bad faith and is chargeable with actual notice. Cooper v. Flesner, 24 Okla. 47, 103 P. 1016, 23 L. R. A. (N. S.) 1180, 20 Ann. Cas. 29; Herbert v. Wagg, 27 Okla. 674, 117 P. 209. A multitude of cases could be cited to support this proposition, but it is so well settled as to become axiomatic that one" who takes with notice of an equity takes subject to that equity. Thompson v. Wilkinson, 46 Okla. 115, 148 P. 177.” Adverse possession of real estate for the period of time prescribed by the statute (section 99, O. S. 1931), ripens into title by prescription. Adverse possession may be either under claim of right or color of title. When an occupant of land is in possession thereof under a deed which purports to place the title in him, he is holding adversely under color of title, and his possession is deemed to include all lands included within the boundaries named in the occupant’s deed. Martin v. Cox et al., 31 Okla. 543, 122 P. 511. Thus the continuous possession of the 18-inch strip of land described in the deed thereto for a period in excess of 15 years ripened into title by prescription in the adverse holder. In view of the deed of conveyance to the 18-inch strip involved in this action and the adverse possession thereof, the property line now corresponds to the center of the wall, and the respective owners of the adjoining properties each owns a one-half interest in the party wall. The cause is remanded to the trial court, with directions to enter its judgment quieting title to the 18-inch strip in the plaintiff, and to decree the respective interests of the parties in the1 party wall in accordance with the views expressed in this opinion. RILEY, C. J., and OSBORN, WELCH, and BAYLESS, J.T., concur. SWINDALL and McNEILL, JJ., dissent. CULLISON, V. C. J., and ANDREWS, J., absent.